Make sub rosa take a back seat to your client’s damages

Strategies to identify the sub rosa, keep it out, and deal with it if the court lets it in

2025 April

In war, spying is considered a war crime. In litigation, spying is how the defense attempts to locate and expose the jugular of your case. The defense hires spies to follow your clients and videotape their activities, routines, and daily lives. The defense uses this surveillance, known as sub rosa, to create a sinister rendition of the damages that your client is claiming.

When seeking to obtain righteous money damages for injury victims, a proactive advocate prepares for the prospect of sub rosa early in litigation. Indeed, the proactive advocate is constantly on guard against sub rosa, making multiple attempts to extract it from behind enemy lines until the case concludes. This article shares techniques to hunt for sub rosa before trial, with the aim of preventing it from derailing the legitimacy of your client’s claims. These tactics will give you the best chance of forcing sub rosa to take a back seat to your client’s claims for damages.

Search and disarm: Hunting for the existence of sub rosa in discovery

The field of war is ripe with land-mines for the unwitting soldier. Similarly, the landscape of litigation is rife with latent traps like sub rosa. Early and often, you will find the proactive advocate on the hunt for sub rosa. If you want the triers of fact to view your client’s damages as legitimate, you must protect them as much as possible.

It is one thing for your client’s damages to be attacked by the defense experts’ clunky, complex, and boring oral testimony. It is another thing, entirely, for your client’s damages to be attacked by visual evidence of surveillance purporting to show, as the defense will argue, the plaintiff is dishonest and to be distrusted.

Most of the population are visual learners, meaning that the images captured in sub rosa are likely to travel with the jury to the deliberation room, poison the arbitrator’s view of your client, creep into your mediator’s mind as they author their proposal, and stoke the flames of defense counsel’s victory cigar. Alas, there are ways for the proactive advocate to sniff out the existence of sub rosa before trial: propounding form interrogatories and shaking down Defense experts in deposition.

Form Interrogatory 13.0 “Investigation – Surveillance” asks, “Have YOU OR ANYONE ACTING ON YOUR BEHALF conducted surveillance of any individual involved in the INCIDENT or any party to this action?”  This interrogatory can be propounded at any point during the discovery period. Do not get your hopes up just yet, though. The defense is likely to object on the basis of work product privilege: “Objection. This interrogatory requests information protected by the attorney work product privilege.”

Learn and use Suezaki v. Superior Court

Often the defense cites a case along with objection: Nacht & Lewis Architects Inc. v. Superior Court (1967) 47 Cal.App.4th 214. To the contrary of the defense’s sham argument that sub rosa gains protection from disclosure because of the work product privilege, photographs and surveillance are discoverable. The seminal case on this issue is Suezaki v. Superior Court (1962) 58 Cal.2d 166. In that case, the defense hired a spy to film a plaintiff claiming to have injuries. The defense argued that the materials produced by the spy, films and photographs of the plaintiff, were privileged as work product and therefore immune from disclosure. The court did accept the defense’s arguments, noting that the disclosure of the sub rosa is necessary for the plaintiff to properly prepare its case by protecting against surprise. (Suezaki, supra at 171.) The court noted that protecting against surprise at trial is supported by the Civil Discovery Act. If the defense fails to respond aside from their objection, the proactive advocate is quick to meet and confer, demand a sufficiently detailed privilege log, and file motion should meet and confer efforts sour.

On the other hand, if the defense responds “no,” notwithstanding its objection, you are not in the clear yet, and vigilance is required. The very next day after responding “no,” the defense can begin spying on your client and gathering their sub rosa footage. However, the Code allows for you to “propound a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party in response to interrogatories.” (Code Civ. Proc., § 2030.070.) This technique may be used twice before the initial setting of a trial date and once after the initial setting of a trial date. (Ibid.) With an eye towards important deadlines in litigation, a supplemental request may be served to smoke out any potential sub rosa. Consider sending this supplemental request an appropriate time before key points in litigation: your client’s deposition; mediation; and the close of fact discovery.

Any good offensive is effective because it minimizes the prospect of committing unforced errors. This is why the proactive advocate meets with clients early in the litigation cycle, or even prior to the filing of a lawsuit. When this meeting occurs, a frank discussion should be had about your client’s injuries. When your client shares their symptoms of pain with you, you will begin to get a rudimentary idea of what their medical journey may entail in the future. Encourage your client to seek clarity from their doctors as to any pertinent medical restrictions. Delve deeper into the details of the ways their injuries limit important activities of daily living and their favorite hobbies. Take the opportunity to thoroughly warn your clients that the defense company will spend countless resources on spies, who will follow them and film them. The defense will attempt to take said footage out of context to contradict and cast doubt upon the damages your client is claiming.

After fact discovery, other opportunities will arise for you to discover the existence of sub rosa. When the defense reveals its retained experts, notice their depositions right away. In the notice, include a request for surveillance of your client that was used to form their opinions. If the defense expert has seen sub rosa and uses it to devalue the plaintiff’s claimed damages in forming their opinion, the surveillance is discoverable.

Continue pressing for sub rosa as trial nears

The proactive advocate never stops attempting to disarm the traps set by the defense. As trial nears, the proactive advocate takes the fight to the other side by filing a motion to exclude any reference to evidence of sub rosa. A motion seeking to preclude evidence of sub rosa should have a main plan, and an alternative plan. In the alternative to preclusion of all sub rosa, the motion should seek an order that any sub rosa be authenticated outside of the jury’s presence. This is important because if you are unable to have the sub rosa excluded from trial, it must be neutralized as much as possible before the jury takes it with them into the deliberation room.

The motion to preclude sub rosa should seek to convince the court of the following three things, at minimum: 1) the defendant failed to acknowledge the existence of sub rosa in its response to Form Interrogatory 13 and supplemental discovery propounded thereafter; 2) sub rosa is irrelevant for impeachment, the negligence of the defendant, and plaintiff’s damages; and 3) sub rosa materials lack any probative value, and disclosure of sub rosa is substantially outweighed by the risk of wasting the jury’s time, and the likelihood of causing undue prejudice by confusing the issues and thereby misleading the jury. The Evidence Code supports your motion for the exclusion of sub rosa and alerts the court that in ruling upon its admissibility, it has the duty of ensuring that the surveillance is a reasonable representation of what the Defense purports it to be. The court must ensure that the use of the surveillance assists the jurors in determining the facts, as opposed to misleading them.

The Evidence Code seemingly anticipates and has built in safeguards against the misuse of inaccurate evidence. This will aid you in your quest to neutralize sub rosa evidence which is often edited, has no accompanying audio, and is clipped in a way that fails to show an accurate picture of what is happening. This sort of editing is a gross distortion of the truth, to say the least. The admission of sub rosa will confuse and distract the jury. It also works to create unfair bias against the plaintiff. In the alternative, the motion must seek to authenticate the sub rosa prior to when it is shown to the jury.

Giving the court options

Though a motion should seek to preclude the introduction of sub rosa completely, it must present the court with multiple options in case it believes the wholesale preclusion of sub rosa is inappropriate. In the alternative to the preclusion of all sub rosa, your motion may ask the court to utilize the authentication process as a safeguard against the introduction of harmful sub rosa. Through the authentication process, the evidence code presents a shield behind which your client may seek temporary refuge.

The Evidence Code mandates that a writing must be authenticated before it is received as evidence by the jury. (Evid. Code, § 1401, subd. (a).) Further, authentication is required before secondary contents may be received in evidence. (Evid. Code, § 1401, subd. (b).) The evidence code defines a “writing” to include photographing, as well as all other means of recording a tangible thing. (Evid. Code, § 250.) Video footage is unique due to its electronic element, but it is still regarded as a “writing” per Evidence Code section 250. This means that the footage gathered by the spies for the defense falls within the anticipated materials that must be authenticated before being received as evidence by the jury.

The process of authentication aims to ensure that the writing is what it purports to be. The authentication process centers around ensuring that anything admitted into evidence for the consideration of the jury is reliable and trustworthy. Per section 1042 of the Evidence Code, evidence may be authenticated through the testimony of a witness with personal knowledge. As it relates to sub rosa footage, this means that the defense spies must testify regarding the video surveillance, sound and silent motion pictures, and photographs, prior to their admission into evidence. If the motion is unsuccessful, the Code of Civil Procedure offers another fallback.

The notice to appear and produce at trial

The Code of Civil Procedure offers the discerning litigator an important tool against sub rosa that must be made use of at the appropriate time. At least 20 days before trial, the Code of Civil Procedure section 1987, subdivision (c) allows for the service of a notice to appear and produce at trial. Per the statute, you may serve the notice on either a party or person to bring with them books, documents, electronically stored information, or other things. (Code Civ. Proc., § 1987, subd. (c).) The notice needs to include the exact materials or things sought. Though the notice to appear can be a powerful tool that may force the Defense to produce sub rosa they are hiding, one should not assume that the Defense will produce the surveillance without a fight. Specifically, section 1987 allows the party whose documents are sought to “serve written objections . . . with a statement of the grounds.” (Ibid.) After the defense objects, the noticing party must move the court and make a showing of the “good cause and materiality of the items to the issues . . . ” (Ibid.) Again, the Civil Discovery Act protects against surprises at trial. (Suezaki, supra at 171.) Video footage of your client that has yet to be scrutinized for veracity, is the exact sort of unfair surprise the Civil Discovery Act seeks to avoid.

Unfortunately, it is not always possible to preclude all sub rosa evidence at trial. In the instances where it seems as if sub rosa will make its way into evidence, it is still important to fight against it. At trial, be open to the possibility that the fight against sub rosa may mean embracing it.

Dealing with sub rosa in court

If sub rosa finds its way into the courtroom, hopefully your attempts to thwart it have significantly weakened its potency. Still, you will have to address it. To do so, you must first gather the sub rosa and view it. When viewing sub rosa, it is best to do so with your client. Your client will be able to fill in the context the surveillance purposely omits. The hope is that your client is able to contextualize their actions from the surveillance.

For instance, I tried a case where my client was a middle-aged woman who was in good health, until she was rear-ended in a car crash on the highway. After many months of conservative treatment failing, she received a cervical discectomy. Before undergoing  her discectomy, she maintained a healthy lifestyle, though it was nowhere near the type of lifestyle she had prior to her injuries. At trial, the defense ended up producing footage of her, taken at some point before her surgery. The footage was from when she was taking a boxing class. The class had multiple students, and one teacher. At first glance, when watching the footage, you might have believed my client was a specimen of perfect health. In turn, you may have disbelieved that she needed any further medical intervention.

Upon review of the footage with my client, it became clear that the surveillance revealed a deeper story than the one it offered at first glance, and more substantive than the story the defense would have had you believe. First, she was doing slightly different drills than her classmates for each exercise performed. Her drills were modified in anticipation of her medical condition. On top of that, she was only performing approximately 25% of the repetitions. Long after she stopped an exercise, her classmates would continue with accelerating intensity. For another drill that required the class to lay on their backs, you can see that my client is the only one in the video with two large gloves underneath her head for support. The way that she performed the drill was nowhere near the intensity of her classmates’.

My client pointed out the portions of the video where she was struggling and took breaks. She also let me know that she had been attending that specific class with the same instructor for many months before her motor vehicle accident. Her trainer knew about the car crash and created a modified workout plan for my client. What this evidence ended up becoming, was an illustration of how an injured woman was fighting to have a small semblance of the life she had before suffering injuries caused by the defendant’s carelessness.

Good luck and happy hunting

As discussed, written discovery is one way to smoke out the existence of any sub rosa. In addition to an initial round of discovery, supplemental requests must be propounded. Depending on the defense’s objections, you must be ready to bring the appropriate motion. If the defense responds in discovery indicating that no surveillance evidence exists, be ready to request the production of sub rosa in the notice of expert depositions. Do not forget to send a Code of Civil Procedure section 1987 notice, demanding the production of sub rosa with attendance at trial. Should it appear as if sub rosa will be admitted, be sure to review it with your client thoroughly. Only in reviewing it with your client, will you be able to see the bigger picture. These tactics will give you the best chance to hunt for sub rosa effectively. In turn, you will have the opportunity to neutralize or disarm it prior to trial. This will afford you the best shot at maintaining your client’s credibility and protecting their claim for damages. Good luck, and happy hunting.